Birth Control Debate

February 9, 2012

Washington

Birth control is rapidly gaining steam as an election-year wedge issue, with Jewish advocates lobbying out front and behind the scenes in what is shaping up as a clash between calls for individual freedom and religious liberty.

Several Jewish groups and lawmakers played a behind-the-scenes role in the latest flashpoint: last month's order by the Obama administration requiring most religious institutions -- other than houses of worship -- to include contraceptives in health care coverage. The order has been strongly criticized by the Republican presidential front-runners, who portray it as proof that the Obama administration is hostile to religious communities.

Even before the U.S. Health Department issued its ruling, the Republican presidential primary battle had helped put the contraception debate back on the campaign agenda. Taking the fight in the other direction, the GOP candidates argued in effect that states should have the right to ban birth control.

During one debate, Mitt Romney and Rick Santorum argued that the U.S. Supreme Court wrongly decided the landmark 1963 Griswold v. Connecticut case that blocked states from criminalizing the use of birth control by a married couple and cemented the constitutional right to privacy.

Romney, Santorum and Newt Gingrich all have voiced support for the so-called Personhood Amendment, a measure that defines a fertilized egg as a human being and, advocates on both sides say, could be interpreted to ban some forms of birth control.

While recent events have thrust the issue back into the national limelight, Jewish groups on both sides say the issue never really went away.

It's not just that the role of government in making birth control available is inextricably wrapped into abortion, it's the better-publicized sister when it comes to reproductive controversies.

The issue also goes to the core of an American argument that has endured for decades over which entity in a democracy is more entitled to religious freedoms, the individual or the health care provider.

The division over who is pre-eminent under the law, a community and its institutions or the individual, splits the Jewish community. Orthodox and more liberal groups took opposite sides on last month's Health Department order requiring all religious institutions except for houses of worship to include contraceptives in health care coverage.

"The larger issue here is the issue of the relationship between religious employers and employees and religious pro-viders and patients, and the rights of each," said Abba Cohen, the Washington director of Agudath Israel of America, an Orthodox umbrella group.

If the issue is playing out more prominently in the public eye, it is because the actors in the church-state separation controversy are seizing the political moment of an election season defined increasingly by cultural divisions between left and right, said Sammie Moshenberg, director of the National Council for Jewish Women's Washington office.

"There has been a longtime effort to really restrict women's reproductive help overall," she said. "But the people fighting this fight to make women's health care less accessible have been emboldened by things on the political scene, most notably the anti-choice majority in the House of Representatives."

The most recent evidence of the division is related to the rule under the Affordable Care Act requiring employer-provided health insurance plans to include contraception and related "preventive" services for employees.

Catholic Church leaders had urged that an exemption for religious institutions be broadened from houses of worship to include a range of religiously affiliated institutions, like hospitals.

Top Catholic officials, including New York Archbishop Timothy Dolan, president of the U.S. Conference of Catholic Bishops, made their case in private meetings with Obama.

A number of Jewish groups and lawmakers pushed back from the other side. NCJW organized a meeting with senior administration officials, as well as representatives of Jewish Women International and a number of liberal Christian umbrella groups.

Two eminent Jewish congresswomen, Sen. Barbara Boxer (D-Calif.) and Rep. Jan Schakowsky (D-Ill.), the latter one of Obama's earliest backers in his bid for the presidency, became involved.

On Jan. 20, Kathleen Sebelius, the secretary for Health and Human Services, said in a statement that the exemption would stay as is: confined to houses of worship.

Schakowsky praised the decision, saying it was "inconceivable" that contraception was once again controversial. "No employer should decide for a woman whether she can access the health care services that she and her doctor decide are necessary," she said.

"This decision will help working families by giving them access to free birth control," Boxer wrote on the Huffington Post. "The cost of birth control can be prohibitive for many women, particularly in these difficult economic times."

Orthodox groups said the decision was a disappointment.

"To say the government will afford religious liberty only to the most insular of religious institutions but not to those that serve, or employ, people of other faiths is a troubling view of faith and what role it should play in America," Nathan Diament, director of the Washington office of the Orthodox Union, wrote in a letter published Feb. 5 in The New York Times.

Cohen of Agudath Israel of America said the issue was one of keeping government out of religious determinations.

Rabbi David Saperstein, director of the Reform movement's Religious Action Center, said the decision is vexing because the language it uses to distinguish between strictly religious institutions, which would be exempt, and those that are less so is vague. To be exempt, according to the order, an institution must "primarily" serve and employ those of its faith.

" 'Primarily' is a terribly vague term that will lead to lawsuits that will not help the cause of contraception or the cause of religious freedom," Saperstein said in an interview.

The issue quickly took on the colors of a partisan debate.

In their speeches after the Jan. 31 Florida primary, Gingrich and Romney each said they would extend the exemption to the broader category of religious institutions as soon as they assumed office. Gingrich called the decision part of what he said was Obama's "war against religion." Romney said it was a "direct attack on religious liberty."

Sen. Marco Rubio (R-Fla.), touted as a possible vice presidential pick, has introduced a bill that would supersede the policy.

Sources among Capitol Hill Democrats say they are alarmed by the recent intensity of the effort to roll back gains in preserving individual rights in determining birth control decisions.

They point to the failed attempt in Mississippi last election to define life as starting from conception and similar bills now pending in Congress.

Emblematic of the politicized tone, Moshenberg said, was last week's controversy involving the Susan G. Komen foundation's decision -- later reversed -- to cut off Planned Parenthood from a program offering free breast cancer screenings to low-income women.

"Komen and birth control should be completely different issues," she said, "except for the fact that the people on the other side are exactly the same people."